Citation Nr: 9920371
Decision Date: 07/23/99 Archive Date: 07/28/99
DOCKET NO. 97-25 533 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Roanoke,
Virginia
THE ISSUES
1. Entitlement to an increased rating for varicose veins of
the left leg with chronic venous insufficiency and phlebitis,
currently evaluated as 30 percent disabling.
2. Evaluation of service-connected post-traumatic stress
disorder (PTSD), currently rated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Neil T. Werner, Associate Counsel
INTRODUCTION
The veteran's active military service included periods from
March 20, 1943, to March 4, 1947, from October 7, 1947, to
December 15, 1960, and from January 1, 1964, to December 31,
1966.
This matter comes to the Board of Veterans' Appeals (Board)
following a January 1997 decision by the Roanoke, Virginia,
Regional Office (RO) of the Department of Veterans Affairs
(VA) which, among other things, denied the veteran's claim
for a disability rating greater than 30 percent for his
service-connected varicose veins of the left leg with chronic
venous insufficiency and phlebitis, and granted service
connection for PTSD. A 10 percent rating was assigned for
PTSD effective from July 23, 1996. Other issues were also
addressed in this rating decision and in a May 1997 statement
of the case. However, by correspondence dated in August
1997, the veteran withdrew from appellate review all issues
but the ones listed on the preceding title page.
REMAND
Initially, the Board notes that the rating criteria for
evaluating cardiovascular disabilities, including varicose
veins, were amended on two occasions during the pendency of
the veteran's appeal. The first amendment became effective
on January 12, 1998. 62 Fed. Reg. 65207-65224 (Dec. 11,
1997). The second amendment became effective on August 13,
1998. 63 Fed. Reg. 37778-37779 (July 14, 1998). Moreover,
the rating criteria for evaluating psychiatric disorders,
including PTSD, were also amended during the pendency of the
veteran's appeal. This amendment became effective November
7, 1996. 61 Fed. Reg. 52695-52702 (Oct. 8, 1996). (The RO
made the veteran aware of this latter change in the statement
of the case provided in May 1997.)
The United States Court of Appeals for Veterans Claims (known
as the United States Court of Veterans Appeals prior to March
1, 1999) (Court) has held that, where the law changes after a
claim has been filed or reopened, but before the
administrative or judicial appeal process has been concluded,
the version most favorable to the appellant must be applied,
unless Congress provides otherwise or the Secretary permits
action to the contrary. Karnas v. Derwinski, 1 Vet. App. 308
(1990). Since Congress has not provided otherwise in this
particular instance, and because the Secretary has not
permitted action contrary to the rule in Karnas, analysis of
both the veteran's claims must include consideration of each
version of the applicable rating criteria. Id.
Tellingly, as to veteran's claim for an increased rating for
varicose veins, notice of the changes by way of a statement
of the case or supplemental statement of the case has not
been provided. Moreover, no examination has been conducted
since the change in law that takes into account the change in
criteria. See October 1996 VA diseases of the artery/veins
examination.
As to veteran's claim for a higher evaluation for PTSD, while
the RO informed the veteran of the new criteria for rating
PTSD that became effective in November 1996, no examination
has been conducted since the change in law that takes into
account the change in criteria. See May 1997 statement of
the case and October 1996 VA PTSD examination.
To satisfy these procedural requirements, a remand is
required. See Bernard v. Brown, 4 Vet. App. 384, 393 (1998).
Moreover, on remand VA's duty to assist requires that the
veteran be scheduled for VA examinations that not only takes
into account the records of prior medical treatment, but
includes clinical findings sufficient to rate varicose veins
and PTSD in accordance with the applicable criteria, both old
and new. See Green v. Derwinski, 1 Vet. App. 121 (1991);
Massey v. Brown, 7 Vet. App. 204 (1994).
Additionally, the Board notes that the June 1997 VA Form 9
contains a request for a personal hearing at a local VA
office before the Board. Thereafter, in an August 1997
statement in support of claim, the veteran withdrew this
hearing request. However, the veteran, by the same August
1997 statement, requested a personal hearing before RO
personnel. An April 1998 report of contact shows that the
veteran's wife notified the RO that the veteran could not
attend the scheduled hearing because he had been hospitalized
due to the severity of his psychiatric disorder. The Board
observes that, while the hearing was canceled, it is not
clear that such action on the part of the veteran's wife
constituted a withdrawal of the hearing request, especially
in light of the circumstances leading to the veteran's
unavailability. Therefore, on remand, the veteran should be
contacted and asked if he still desires a personal hearing.
If so, such a hearing should again be scheduled.
For the reasons stated, this case is REMANDED to the RO for
the following actions:
1. The veteran should be given an
opportunity to supplement the record on
appeal. Additionally, the veteran should
be contacted and asked if he still
desires a personal hearing. If so, a
personal hearing should be scheduled.
2. The RO should schedule the veteran
for an examination to assess the severity
of his service-connected varicose veins.
The claims folder and a copy of this
remand should be made available for the
examiner's review. Clinical findings
should be elicited so that both the old
and new rating criteria may be applied.
3. The RO should also schedule the
veteran for a VA psychiatric examination.
The examiner should review the entire
claims folder, provide an opinion as to
all symptoms attributable to PTSD only,
and, to the extent feasible, provide an
opinion as to the combined effect of all
manifestations of PTSD on the veteran's
social and industrial adaptability. If
it is not possible to distinguish the
adverse symptomatology due solely to his
service-connected PTSD, as opposed to any
other non-service-connected psychiatric
disorder(s), the examiner should so
state. An opinion should also be
provided as to whether any other
psychiatric disorder(s) constitutes the
natural progression of his service-
connected PTSD. Clinical findings should
be elicited so that both the old and new
rating criteria may be applied.
Additionally, a GAF score should be
provided, and the examiner should explain
its meaning.
4. The RO should take adjudicatory
action on the veteran's claims.
Adjudication of the claims should take
into account both old and new rating
criteria. The version most favorable to
the veteran should be used to assign
rating(s). As to the veteran's claim for
a higher evaluation for service-connected
PTSD, the RO should also consider whether
"staged" ratings are appropriate.
Fenderson v. West, 12 Vet. App. 119
(1999). (The effective date for the
change in criteria should be considered
when assigning any staged rating.) If
any benefit sought remains denied, a
supplemental statement of the case should
be issued. The supplemental statement of
the case should include the new and old
schedular rating criteria, with
appropriate citations, and an explanation
of how such criteria affect the RO's
decision.
After the veteran and his representative have been given an
opportunity to respond to the supplemental statement of the
case, the claims folder should be returned to this Board for
further appellate review. No action is required of the
veteran until he receives further notice. The purpose of the
remand is to comply with governing adjudicative procedures.
The Board intimates no opinion, either legal or factual, as
to the ultimate disposition of the appeal.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or by the Court for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1999) (Historical and Statutory Notes).
In addition, VBA's Adjudication Procedure Manual, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
MARK F. HALSEY
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991& Supp. 1999), only a
decision of the Board is appealable to the Court. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1998).